Citation Nr: 0123123
Decision Date: 09/24/01 Archive Date: 10/02/01
DOCKET NO. 98-15 887A ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in New York,
New York
THE ISSUES
1. Entitlement to service connection for post-traumatic
stress disorder (PTSD).
2. Entitlement to service connection for a respiratory
disability, including sarcoidosis, due to an undiagnosed
illness.
3. Entitlement to service connection for joint pain due to
an undiagnosed illness.
4. Entitlement to service connection for a skin condition
due to an undiagnosed illness.
5. Entitlement to service connection for headaches due to an
undiagnosed illness.
6. Entitlement to service connection for residuals of a head
injury.
7. Entitlement to service connection for blurred vision and
loss of vision.
REPRESENTATION
Appellant represented by: New York Division of Veterans'
Affairs
WITNESS AT HEARINGS ON APPEAL
The Veteran-Appellant
ATTORNEY FOR THE BOARD
J. D. Parker, Counsel
INTRODUCTION
The veteran (also referred to as "appellant" or
"claimant") served on active duty from July 1985 to
February 1986, and from November 1990 to July 1991, with
service in the Southwest Asia theater of operations during
the Persian Gulf War from January 11, 1991 to June 11, 1991.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from rating decisions issued in December
1995 and October 1998 by the Department of Veterans Affairs
(VA) Regional Office (RO) in New York, New York. The
December 1995 rating decision denied service connection for
coughing and breathing trouble, muscle aches, weight loss,
headaches, and skin problems, due to undiagnosed illnesses,
and denied service connection for PTSD. The veteran entered
a general notice of disagreement with this decision in
January 1996 (on a Statement in Support of Claim form). The
veteran later specified the disorders for which he was
appealing for service connection, which did not include for
weight loss. The RO issued a statement of the case as to
these issues in October 1998. The veteran entered a
substantive appeal, on a VA Form 9, which was received in
October 1998. The October 1998 rating decision denied
service connection for (residuals of) a head injury and for
blurred vision and loss of vision, and granted a non-service-
connected pension. In October 1998, the veteran entered a
notice of disagreement with this decision's denials of
service connection; the RO issued a statement of the case as
to these issues in March 1999; and the veteran entered a
substantive appeal, on a VA Form 9, which was dated in May
1999.
The issues of entitlement to service connection for PTSD and
entitlement to service connection for joint pain due to an
undiagnosed illness are addressed in the REMAND portion of
this decision.
FINDINGS OF FACT
1. The veteran had active military service in the Southwest
Asia theater of operations from January 11, 1991 to June 11,
1991.
2. The veteran's reported symptoms of coughing, breathing,
sore throat, stuffy nose, and cold-like symptoms have been
related by medical evidence to known clinical diagnoses of
sarcoidosis, upper respiratory infection, and bronchitis, for
which service connection has not been established.
3. The veteran's reported symptoms of a skin condition have
been related by medical evidence to known clinical diagnoses
of macular post-inflammatory hyperpigmentation of the
abdomen, back, and legs, xerosis of the skin of the buttocks,
folliculitis/furuncle of the neck and pubis, and seborrhea of
the scalp, for which service connection has not been
established.
4. The veteran did not incur a head injury in service; his
reported symptoms of headaches have been related by medical
evidence to known clinical diagnoses of seizure disorder,
upper respiratory infection, and (post-service) post-
concussion syndrome, for which service connection has not
been established.
5. The competent medical evidence of record does not
demonstrate a nexus between the veteran's diagnosed
sarcoidosis, residuals of a head injury, or blurred vision or
loss of vision and service, and does not demonstrate onset of
sarcoidosis manifested to a compensable degree within one
year of service separation.
CONCLUSIONS OF LAW
1. Service connection for a respiratory disorder, including
sarcoidosis, skin condition, and headaches, due to
undiagnosed illnesses, is not warranted. 38 U.S.C.A. § 1117
(West 1991); Veterans Claims Assistance Act of 2000, Pub. L.
No. 106-475, 114 Stat. 2096 (2000); 38 C.F.R. §§ 3.102, 3.317
(2000); 66 Fed. Reg. 45,620 (Aug. 29, 2001) (to be codified
as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and
3.326(a)).
2. Service connection for sarcoidosis, residuals of a head
injury, and blurred vision or loss of vision is not
warranted. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137
(West 1991); Veterans Claims Assistance Act of 2000, Pub. L.
No. 106-475, 114 Stat. 2096 (2000); 38 C.F.R. §§ 3.102,
3.303, 3.307, 3.309 (2000); 66 Fed. Reg. 45,620 (Aug. 29,
2001) (to be codified as amended at 38 C.F.R. §§ 3.102,
3.156(a), 3.159 and 3.326(a)).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veterans Claims Assistance Act of 2000, Pub. L. No. 106-
475, 114 Stat. 2096 (2000), now requires VA to assist a
claimant in developing all facts pertinent to a claim for VA
benefits, including a medical examination when such
examination may substantiate entitlement to the benefits
sought, as well as notice to the claimant and the claimant's
representative, if any, of any information, and any medical
or lay evidence, not previously provided to the VA Secretary,
that is necessary to substantiate the claim. VA has issued
regulations to implement the Veterans Claims Assistance Act
of 2000. 66 Fed. Reg. 45,620 (Aug. 29, 2001) (to be codified
as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and
3.326(a)). The Board finds that, with respect to the issues
decided herein, the requirements of the Veterans Claims
Assistance Act of 2000 and the implementing regulations have
been met. The veteran has been afforded VA examinations in
June 1993 and February 1998, and there are multiple
outpatient treatment and hospitalization records which have
been obtained. In the rating decisions, statements of the
case, and supplemental statements of the case, the RO advised
the veteran of what must be demonstrated to establish service
connection for the claimed disabilities, including as due to
undiagnosed illnesses. The Board finds that the RO has
obtained, or made reasonable efforts to obtain, all treatment
records or other evidence which might be relevant to the
veteran's claims for service connection (other than PTSD and
joint pains), and the veteran has not identified any
additional treatment records or other evidence which has not
been obtained. Accordingly, no further notice to the veteran
or assistance in acquiring additional medical evidence is
required by the new statute and the implementing regulations.
(Further development of the claims for service connection for
PTSD and joint pains as due to an undiagnosed illness is
addressed in the REMAND section below.)
The RO initially determined that the veteran had not entered
a notice of disagreement to the December 1995 RO rating
decision. As a result, in the October 1998 rating decision,
the RO characterized the issues as whether new and material
evidence had been submitted to reopen what was indicated to
be a prior final December 1995 rating decision. However, it
appears the RO later determined that the veteran's January
1996 Statement in Support of Claim, which expressed a desire
to "reopen" his claim, was sufficient to serve as a notice
of disagreement with the December 1995 rating decision. The
Board now finds that the veteran's January 1996 Statement in
Support of Claim was sufficient to serve as a notice of
disagreement with the December 1995 rating decision. Of
special significance is the fact that such a request to
"reopen" claims was received within one year of notice
(issued December 8, 1995) of the December 1995 rating
decision. The statutory and regulatory scheme that Congress
created to protect veterans allows a claimant to file a
"vague NOD" and at a later date "cut the rough stone of
his NOD to reveal the . . . radix of his issue that lay
within." Collaro v. West, 136 F. 3d 1304, 1308-09 (Fed.
Cir. 1998).
Although the March 1998 rating decision, and the October 1998
statement of the case, characterized the issues as whether
new and material evidence had been presented to reopen a
claim, rather than as claims for service connection, they
informed the veteran of the legal requirements to establish
service connection, including as due to undiagnosed
illnesses, and included the provisions regarding the merit-
based application of reasonable doubt. Likewise, although
the May 2000 supplemental statement of the case informed the
veteran that the basis for denial of some claims was that
they were not well grounded, the May 2000 supplemental
statement of the case informed the veteran of the legal
requirements to establish service connection, including on a
presumptive basis. The veteran has at all times argued his
case for service connection on the merits, and has not been
mislead into presenting evidence or argument only on the
requirements for new and material evidence. At both the
January 2000 RO hearing and the May 2001 hearing before the
undersigned member of the Board, for example, the veteran's
representative specifically contended that the issues were
not new and material evidence, that the veteran entered
notice of disagreement in January 1996, and that he had
continually pursued the original compensation claims since
then, so that the issues were entitlement to service
connection. For these reasons, the Board finds that the
veteran has not been prejudiced by the determination that new
and material evidence had not been presented to reopen
service connection claims, that the veteran's claims were not
well grounded, or by the Board's current decision on the
merits. See Bernard v. Brown, 4 Vet. App. 384 (1993).
I. Factual Background
The veteran served on active duty from July 1985 to February
1986, and from November 1990 to July 1991, with service in
the Southwest Asia theater of operations during the Persian
Gulf War from January 11, 1991 to June 11, 1991. His
military occupational specialty was materiel storage and
handling specialist. He also served with a Reserve unit.
Service medical records reflect that, during the veteran's
first period of active duty service, years prior to the later
period of service in the Persian Gulf, in August 1985 he
reported a left ankle injury, with swelling and pain,
assessed as left ankle sprain. In September 1985, the
veteran complained of left ankle pain due to trauma and open
laceration, and also complained of and was treated for
calluses of the feet. In October 1985, the veteran
complained of headache, dizziness, and sore throat, assessed
as new onset of seizure disorder. In November 1985, the
veteran complained of difficulty breathing, with dizziness
and chest pains when he inhaled. An emergency care and
treatment form dated in November 1985 reflects the veteran's
complaints of sore throat, which was inflamed, diagnosed as
to rule out pharyngitis. The physical examination revealed
rhonchi and wheezing in the left lung base, assessed as
bronchitis. In December 1985, the veteran complained of sore
throat and body aches and chills, assessed as the same. A
discharge diagnosis in December 1985 was questionable seizure
disorder. In January 1986 the veteran complained of
headaches all over his head with pressure behind the eyes
with blurred vision, and weakness of the entire body with
diffuse aches. He reported that in 1985 he had felt dizzy,
weak, and had been told he had a possible seizure.
In November 1990, during the veteran's most recent period of
active duty but prior to his service in the Persian Gulf, he
complained of a cold, sore throat, generalized body ache,
chills, pressure headaches, and productive yellow cough. In
December 1990, the veteran complained of the need for a
prescription for reading glasses, and that he had eyestrain
when reading without glasses. He was found to have clear
focus. In May 1991, the veteran complained of a sore throat,
and was found to have an infected throat, diagnosed as sore
throat secondary to drainage and possible bacteria
pharyngitis. At the service separation examination in March
1991, the veteran reported a medical history which included
that he did not have, and had not had, swollen or painful
joints, frequent or severe headaches, eye trouble, ear, nose,
or throat trouble, chronic or frequent colds, sinusitis, hay
fever, head injury, skin diseases, tuberculosis, shortness of
breach, chronic cough, arthritis, rheumatism, bursitis, or
bone, joint, or other deformity. The veteran specifically
wrote in the Report of Medical History that there had not
been any change in his physical health since mobilization.
Physical examination at service separation in March 1991
clinically evaluated the veteran's head, face, neck, scalp,
nose, sinuses, mouth, throat, eyes, lungs, chest, spine,
musculoskeletal system, and skin as normal.
In an Application for Compensation dated in December 1992,
the veteran wrote that, after serving in the Persian Gulf, he
had been suffering from chronic cold symptoms, coughing,
muscle aches, loss of weight, headache, trouble breathing,
and frequent skin problems. He did not claim service
connection for residuals of a head injury or for loss of
vision or blurred vision.
VA outpatient treatment records reflect that in October 1992
the veteran complained of colds, ringing of the ears, and
coughing greenish phlegm, diagnosed as upper respiratory
infection. The next day in October 1992 the veteran
complained of cold-like symptoms since the previous day, and
complained of wheezing, diagnosed as upper respiratory tract
infection versus allergic rhinitis. In January 1993, the
veteran complained of left big toe pain of two weeks'
duration, which was diagnosed as gout. In February 1993, the
veteran received his third hepatitis vaccine. In May 1993,
the veteran complained of right knee pain and left big toe
pain of two days' duration, diagnosed as muscle skeletal
pain.
At a VA skin examination in June 1993, the veteran reported
dry skin since March 1991 while a patient in Saudi Arabia,
though he had not received any treatment for it by a
physician. He complained that his whole skin itched, which
he treated with moisturizing lotion. Examination revealed
macular post-inflammatory hyperpigmentation of the abdomen,
back, legs, and xerosis of the skin of the buttocks.
At a VA trachea and bronchi examination in June 1993, the
veteran reported a history of recurrent episodes of cough,
sore throat, and nasal stuffiness in the past year.
Objective findings included nasal congestion. The diagnosis
was recurrent upper respiratory tract infections. A June
1993 VA Medical Certificate reflects diagnoses of upper
respiratory infection and a questionably pruritic rash of the
skin.
A January 1994 VA Medical Certificate reflects the veteran's
complaints of three days of cold, sore throat, and headaches,
diagnosed as upper respiratory infection with bronchitis. A
March 1995 VA Medical Certificate reflects the veteran's
complaints of sore throat, stuffy nose, and coughing for six
days, diagnosed as mild upper respiratory infection. An
April 1996 treatment entry reflects a diagnosis of
sarcoidosis. A November 1995 VA Medical Certificate reflects
the veteran's complaints of a one year history of pain in
both knees, with a history of bilateral knee pain since 1992
when he injured the knees. X-rays revealed hypertrophic
changes of both knees. The diagnosis was knee pain.
A March 1996 VA emergency consultation report reflects that
the veteran reported a head injury three days prior, with
complaints of headache and dizziness. The examiner noted the
veteran was not reliable. The impression was post-concussive
headache and dizziness. A March 1996 VA Medical Certificate
reflects the veteran's report of having hit his head on a
sink on March 1, 1996, with complaints of headaches,
lightheadedness, altered gait, and somnolence. The diagnosis
was post-concussion syndrome. A February 1997 VA Medical
Certificate reflects the veteran's complaints of two days of
joint pain.
In a January 1997 Statement in Support of Claim, the veteran
wrote that, prior to his military service in the Persian
Gulf, he was "a perfectly healthy individual."
VA pulmonary function testing in December 1997 resulted in
findings of reduced lung volumes, and a diagnosis of
sarcoidosis. A report of VA respiratory examination in
February 1998 reflects a diagnosis of sarcoidosis with
restricted lung disease with mild hypoxia. At a VA
orthopedic examination in February 1998, the examiner noted
the veteran's history of bilateral shoulder and bilateral
knee pains since 1993, mostly at night and in the morning,
clinical findings which included limitation of motion,
including due to pain or fear of pain, and negative X-ray
findings. The diagnoses were chronic low back pain and
chronic left shoulder pain.
At a personal hearing at the RO in January 2000, the veteran
testified in relevant part as follows: he was working full
time prior to being activated to go the Persian Gulf; he did
not start having problems with headaches or shortness of
breath until he returned to the U.S.; he was knocked
unconscious during service in the Persian Gulf, was taken to
sick call, and woke up experiencing dizziness; the dizziness
did not go away; they did not give a separation physical
following service in the Persian Gulf; when he first sought
treatment at VA (time unspecified), his complaints were joint
pains, shortness of breath, and headaches; he still had
problems with stiffness, aching, headaches, dizziness, and
ringing in the ears; he did not keep count of the frequency
of the headaches; hospitalizations had been for psychiatric
problems, but not physical complaints; he stopped keeping
count as to how frequently the skin condition came; and he
did not receive any treatment for a skin condition before he
put in his claim for compensation.
A January 2000 report of VA hospitalization notes the
veteran's complaints of headaches, and pain and weakness in
the arm, back, legs, and hips, fainting spells, shortness of
breath, unstable joints, musculoskeletal stiffness, and
particles of scalp flaking off. Diagnoses included
sarcoidosis, fatigue, joint aches, muscle aches,
folliculitis/furuncle of the neck and pubis, seborrhea of the
scalp, and xerosis.
At a personal hearing in May 2001 before the undersigned
member of the Board, sitting in New York, the veteran
testified in relevant part as follows: prior to being
activated for service in the Persian Gulf he was working two
jobs; there was no physical performed at service separation;
after service in July 1991, he did not right away go for
medical treatment, and went back to work, which only lasted a
few weeks; he got out of the Reserves in 1995; he started
having some of the symptoms of joint pain, fatigue, and
blurred vision after service in January, and June through
September, of 1992; he did not have any medical care prior to
going to VA; he still had joint pains, blurred vision, and
loss of vision; he experienced a head injury in service in
February 1991 when he hit his head on a diner when it came
down on his head, causing him to black out for a minute, and
causing a headache and flashes of gray light; a skin disorder
began after he returned from service; he experienced
headaches and vision problems for the rest of his service;
and his skin is real dry, his head is dry and flaky.
II. Service Connection Law and Regulations
Service connection may be granted for a disability resulting
from disease or injury incurred in or aggravated by service.
38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a) (2000). For
the showing of chronic disease in service, there is required
a combination of manifestations sufficient to identify the
disease entity and sufficient observation to establish
chronicity at the time. If chronicity in service is not
established, a showing of continuity of symptoms after
discharge is required to support the claim. 38 C.F.R. §
3.303(b) (2000). Service connection may also be granted for
any disease diagnosed after discharge when all of the
evidence establishes that the disease was incurred in
service. 38 C.F.R. § 3.303(d) (2000). Certain chronic
diseases, including sarcoidosis, may be presumed to have been
incurred during service if manifested to a compensable degree
within one year of separation from active military service.
38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307,
3.309.
Service connection may also be established for a chronic
disability resulting from an undiagnosed illness which became
manifest either during active service in the Southwest Asia
theater of operations during the Persian Gulf War or to a
degree of 10 percent or more not later than December 31,
2001. 38 C.F.R. § 3.317(a)(1)(i) (2000).
Objective indications of a chronic disability include both
"signs," in the medical sense of objective evidence
perceptible to an examining physician, and other, non-medical
indicators that are capable of independent verification.
Disabilities that have existed for six months or more and
disabilities that exhibit intermittent episodes of
improvement and worsening over a six-month period will be
considered chronic. The six-month period of chronicity will
be measured from the earliest date on which the pertinent
evidence establishes that the signs or symptoms of the
disability first became manifest. A chronic disability
resulting from an undiagnosed illness referred to in this
section shall be rated using rating criteria from VA's
Schedule for Rating Disabilities (rating schedule) for a
disease or injury in which the functions affected, anatomical
localization, or symptomatology are similar. A disability
referred to in this section shall be considered service
connected for the purposes of all laws in the United States.
38 C.F.R. § 3.317(a)(2-5) (2000).
Signs or symptoms which may be manifestations of an
undiagnosed illness include, but are not limited to, fatigue,
signs or symptoms involving the skin, headaches, muscle pain,
joint pain, neurologic signs or symptoms, neuropsychological
signs or symptoms, signs or symptoms involving the
respiratory system (upper or lower), sleep disturbances,
gastrointestinal signs or symptoms, cardiovascular signs or
symptoms, abnormal weight loss, or menstrual disorders. 38
C.F.R. § 3.317(b) (2000).
III. Undiagnosed Illness Claims
A. Respiratory Disorder (Sarcoidosis)
In this case, the service medical record evidence reflects
that the veteran experienced cold symptoms, sore throat,
inflamed throat, difficulty breathing, chest pains, rhonchi,
wheezing, productive yellow cough, and bronchitis before even
going to the Persian Gulf, and continued to experience some
symptomatology during his Persian Gulf service. With regard
to the current claim on appeal, however, service connection
for an undiagnosed illness may not be granted on the basis of
aggravation of a preexisting disability of sore throat,
coughing, or respiratory symptomatology. The controlling
regulation specifically provides that compensation for
disability due to undiagnosed illness is paid only for
disability which "resulted from" an illness or combination
of illnesses. 38 C.F.R. § 3.317(a)(1). The illness or
combination of illnesses must have become manifest either
during active service in the Southwest Asia theater of
operations during the Persian Gulf War or after such service
and prior to December 31, 2001. 38 C.F.R. § 3.317(a)(1)(i).
Additionally, the veteran's reported symptoms of coughing,
breathing, sore throat, stuffy nose, and cold-like symptoms
have been related by medical evidence to known clinical
diagnoses of sarcoidosis, upper respiratory infection, and
bronchitis, for which service connection has not been
established. For example, an October 1992 diagnosis was
upper respiratory infection, with multiple subsequent
diagnoses of recurrent upper respiratory infection.
Beginning in December 1997, such symptomatology complained of
has been diagnosed as sarcoidosis, including with restricted
lung disease with mild hypoxia. The controlling regulation
provides that compensation is payable only for illnesses
which "[b]y history, physical examination, and laboratory
tests cannot be attributed to any know clinical diagnosis."
38 C.F.R. § 3.317(a)(ii). Because the veteran's reported
symptoms of coughing, difficulty breathing, sore throat,
stuffy nose, and cold-like symptoms have been related by
medical evidence to known clinical diagnoses of upper
respiratory infection, bronchitis, and sarcoidosis, including
with restricted lung disease with mild hypoxia, the Board
must find that service connection for a respiratory (coughing
or breathing) disorder, including sarcoidosis, due to an
undiagnosed illness, is not warranted. 38 U.S.C.A. §§ 1117;
Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475,
114 Stat. 2096 (2000); 38 C.F.R. § 3.317; 66 Fed. Reg. 45,620
(Aug. 29, 2001) (to be codified as amended at 38 C.F.R.
§§ 3.102, 3.156(a), 3.159 and 3.326(a)).
The Board has also considered the veteran's claim for service
connection for sarcoidosis on a direct causation basis. See,
e.g., Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994).
With regard to a claim for service connection on the theory
of direct incurrence in service, the Board finds that the
medical evidence of record does not suggest a nexus between
the veteran's currently diagnosed sarcoidosis, diagnosed
years after service separation, and service, and does not
establish onset (including to a degree of 10 percent
disabling) within one year of service.
B. Skin Condition
The veteran's reported symptoms of a skin condition have been
related by medical evidence to known clinical diagnoses of
macular post-inflammatory hyperpigmentation of the abdomen,
back, and legs, xerosis of the skin of the buttocks,
folliculitis/furuncle of the neck and pubis, and seborrhea of
the scalp, for which service connection has not been
established. For example, at the June 1993 VA skin
examination, where the veteran reported skin symptomatology
since March 1991 during his Persian Gulf service, the
diagnoses were macular post-inflammatory hyperpigmentation of
the abdomen, back, and legs, and xerosis of the skin of the
buttocks. Xerosis is defined as "abnormal dryness, as of
the eye, skin, or mouth." Dorland's Illustrated Medical
Dictionary, 27th ed., at 1860 (1988). A January 2000 report
of VA hospitalization included the diagnoses of folliculitis/
furuncle of the neck and pubis, and seborrhea of the scalp.
Because the veteran's reported skin symptoms have been
related by medical evidence to known clinical diagnoses, for
which service connection has not been established, the Board
must find that service connection for a skin condition, due
to an undiagnosed illness, is not warranted. 38 U.S.C.A.
§§ 1117; Veterans Claims Assistance Act of 2000, Pub. L. No.
106-475, 114 Stat. 2096 (2000); 38 C.F.R. § 3.317; 66 Fed.
Reg. 45,620 (Aug. 29, 2001) (to be codified as amended at
38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a)).
C. Headaches
In this case, the service medical record evidence reflects
that the veteran experienced headaches before even going to
the Persian Gulf. For example, in October 1985, he
complained of headaches and other symptomatology, and in
January 1986 he also complained of headaches. In November
1990, still prior to service in the Persian Gulf, the veteran
complained of pressure headaches. With regard to the current
claim on appeal, service connection for an undiagnosed
illness may not be granted on the basis of aggravation of a
preexisting disability of headache symptomatology. The
controlling regulation specifically provides that
compensation for disability due to undiagnosed illness is
paid only for disability which "resulted from" an illness
or combination of illnesses. 38 C.F.R. § 3.317(a)(1). The
illness or combination of illnesses must have become manifest
either during active service in the Southwest Asia theater of
operations during the Persian Gulf War or after such service
and prior to December 31, 2001. 38 C.F.R. § 3.317(a)(1)(i).
The veteran's reported symptoms of headaches have been
related by medical evidence to known clinical diagnoses of
seizure disorder, upper respiratory infection, and post-
concussion syndrome, for which service connection has not
been established. For example, in October 1985 he complained
of headaches and other symptomatology which was assessed as
onset of seizure disorder. In January 1994, the symptoms
which included three days of headaches were diagnosed as
upper respiratory infection with bronchitis. March 1996
treatment entries reflect a diagnosis of post-concussive
headaches or post-concussion syndrome; this was based on
report of a March 1996 post-service head injury. For these
reasons, the Board must find that service connection for
headaches due to an undiagnosed illness is not warranted.
38 U.S.C.A. §§ 1117; Veterans Claims Assistance Act of 2000,
Pub. L. No. 106-475, 114 Stat. 2096 (2000); 38 C.F.R.
§ 3.317; 66 Fed. Reg. 45,620 (Aug. 29, 2001) (to be codified
as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and
3.326(a)).
IV. Direct Service Connection Claims
A. Residuals of a Head Injury
The veteran contends that he incurred a head injury in
service. He first testified about a head injury in service
at a personal hearing in January 2000. He testified that he
was knocked unconscious (at an unspecified time) during
service in the Persian Gulf, was taken to sick call, and woke
up experiencing dizziness. At a hearing in May 2001 before
the undersigned member of the Board, the veteran testified
that in February 1991 he hit his head on a diner, which
caused him to black out and caused a headache. The veteran's
more recent assertion, however, is outweighed by the
contemporaneous service medical record evidence, the
veteran's earlier reports of medical history, and the
veteran's inability to recall dates and symptomatology.
Service medical records are negative for evidence or report
of, or treatment for, a head injury in service, including in
February 1991. Of special significance is the veteran's
Report of Medical History at the service separation
examination in March 1991 (an examination he denied took
place) which specifically indicated that he had not had a
head injury or headaches. This signed statement, although
against the veteran's interest, may nevertheless be
considered in this case because the absence of a head injury
in service is a fact independently established by the other
service medical record evidence, including absence of report
of head injury or treatment during service, and the absence
of clinical findings during service and at service
separation. See 38 C.F.R. § 3.304(b)(3) (2000).
With regard to the veteran's histories, when he filed his
original Application for Compensation in December 1992, he
did not at that time mention a head injury in service.
During numerous VA examinations and when asked for histories
during VA treatment after service, the veteran did not
mention a head injury in service. At the Board hearing, the
veteran initially could not recall which month the head
injury was alleged to have occurred; he guessed October or
January, then, at the prompting of his representative, seemed
to settle on a date after February 1991, then agreed it was
February 1991. At a personal hearing the veteran testified
that his headaches did not begin until he returned to the
U.S., while on other occasions he indicated headaches began
in service and continued through the end of service. The
veteran's histories have been noted on several occasions by
medical examiners to be unreliable.
Additionally, the veteran's other reporting of events
reflects contradictions, such as denying substance abuse when
clinical results were positive for use, and conflicting
reports that his father died during service, while he was
noted to be visiting him during an illness after service in
1997. Based on this evidence, the Board finds the veteran's
assertion that he incurred a head injury in service not to be
credible, and finds as a fact that the veteran did not incur
a head injury in service.
The weight of the evidence demonstrates that the veteran did
incur a head injury years after service on March 1, 1996 when
his head hit a sink. The diagnosis at that time was post-
concussive headache and dizziness or post-concussion
syndrome. Service connection is not warranted for residuals
of a head injury because the evidence does not demonstrate a
head injury in service, or other disease in service, credible
evidence of continuous in-service symptomatology or chronic
post-service symptomatology, and the medical evidence does
not relate the veteran's residuals of head injury to service.
The medical evidence relates such headache symptomatology to
a post-service head injury in March 1996. 38 U.S.C.A.
§§ 1110, 1131; Veterans Claims Assistance Act of 2000, Pub.
L. No. 106-475, 114 Stat. 2096 (2000); 38 C.F.R. § 3.303; 66
Fed. Reg. 45,620 (Aug. 29, 2001) (to be codified as amended
at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a)).
B. Blurred Vision and Loss of Vision
The veteran's complaints of blurred vision and loss of vision
have not been demonstrated by the medical evidence to be
etiologically related to an injury or disease in service.
There is no evidence of an eye injury or disease during
service. At the service separation examination in March
1991, the veteran's eyes were evaluated as clinically normal,
and the veteran himself reported at that examination that he
did not have, and had not experienced, eye trouble. In this
regard, the Board notes that when the veteran initially filed
a claim for service connection in December 1992 he did not
include loss of vision or blurred vision as a disability
which began in service.
The competent medical evidence of record does not demonstrate
a nexus between the veteran's complaints of blurred vision or
loss of vision and his active duty service. The competent
medical evidence has related the veteran's complaints of
pressure behind the eyes with blurred vision, and dizziness,
to a seizure disorder. The veteran's symptom of dizziness
was related by the medical evidence to a post-service head
injury in March 1996, diagnosed as post-concussion syndrome.
During service in November 1990, the veteran requested a
prescription for reading glasses. However, refractive error
of the eye is not a disease or injury for purposes of VA
disability compensation. 38 C.F.R. §§ 3.303, 4.9 (2000).
For these reasons, the Board must find that service
connection for blurred vision and loss of vision is not
warranted. 38 U.S.C.A. §§ 1110, 1131; Veterans Claims
Assistance Act of 2000, Pub. L. No. 106-475, 114 Stat. 2096
(2000); 38 C.F.R. §§ 3.102, 3.303; 66 Fed. Reg. 45,620 (Aug.
29, 2001) (to be codified as amended at 38 C.F.R. §§ 3.102,
3.156(a), 3.159 and 3.326(a)).
The Board has considered the doctrine of affording the
veteran the benefit of any existing doubt with regard to the
issues on appeal. The weighing of the evidence includes the
veteran's personal hearing testimony, which the Board
considered and weighed against the other evidence of record.
However, as the preponderance of the evidence is against the
veteran's claims for service connection, the record does not
demonstrate an approximate balance of positive and negative
evidence as to warrant the resolution of any of these issues
on that basis. 38 U.S.C.A. § 5107(b) (West Supp. 2001);
38 C.F.R. § 3.102.
In making these determinations, the Board has considered the
hearing testimony of the veteran. As a layman, he is not
competent to offer medical opinions or diagnoses. His
testimony is considered credible insofar as he has reported
on observable symptoms and his belief in the merits of his
claims.
ORDER
An appeal for service connection for a respiratory
disability, including sarcoidosis, due to an undiagnosed
illness, is denied.
An appeal for service connection for a skin condition due to
an undiagnosed illness is denied.
An appeal for service connection for headaches due to an
undiagnosed illness is denied.
An appeal for service connection for residuals of a head
injury is denied.
An appeal for service connection for blurred vision and loss
of vision is denied.
REMAND
I. Service Connection for PTSD
The veteran has reported at various times that he experienced
stressful events during his active duty service from November
1990 to July 1991 which included: SCUD missiles flying
overhead and the frequent sound of air raid sirens; "bombing
at night"; that two of his (unnamed) friends were killed in
the Persian Gulf; generally there were "bad experiences";
and he had an argument with a guy who pulled a knife on him.
In a June 1994 letter, and again in September 1997, the RO
requested the veteran to provide specific information
regarding claimed stressful events in service. The veteran
did not respond to these requests. On Remand, the RO should
specifically request from the veteran written information
regarding the specifics of his claimed in-service stressors,
including specific details regarding the reported stressful
events of SCUD missiles flying over the base, deaths of
friends, and any alleged combat with the enemy. The veteran
is hereby notified that, where evidence requested in
connection with an original claim is not furnished within one
year after the date of request, the claim will be considered
abandoned. 38 C.F.R. § 3.158 (2000). "The duty to assist
is not always a one-way street. If a veteran wishes help, he
cannot passively wait for it in those circumstances where he
may or should have information that is essential in obtaining
the putative evidence." Wood v. Derwinski, 1 Vet. App. 190,
193 (1991).
The RO should develop the information regarding reported in-
service stressors of SCUD missiles flying overhead through
the United States Armed Services Center for Research of Unit
Records (USASCRUR). If the veteran reports any specific
information about any other stressful event during service,
the RO should also develop that through the USASCRUR.
If a claimed in-service stressor is verified, a VA
examination is required in this veteran's case because the
diagnoses of PTSD in the VA outpatient treatment records and
VA examinations are based on reports of both unverified in-
service stressful events and non-service-related or post-
service stressful events such as separation from his wife,
financial problems, unemployment, and problems relating to
social environment. For VA compensation purposes, a PTSD
diagnosis must be based on an in-service stressor history
which has been verified (except where a veteran was engaged
in combat, which has not been established). A diagnosis of
PTSD, related to service, which is based on an examination
which relied upon an unverified history, is inadequate. See
West v. Brown, 7 Vet. App. 70, 77-78 (1994).
If any in-service stressful events are verified, the veteran
is entitled to a VA psychiatric (PTSD) examination to
determine whether any verified stressful events are alone
sufficient to support a PTSD diagnosis in his case. The
veteran is notified that, if he fails to report for a VA
examination scheduled in conjunction with his original
compensation claim, the claim shall be rated based on the
evidence of record. 38 C.F.R. § 3.655(b) (2000). Failure to
report to the scheduled VA PTSD examination may potentially
adversely affect the veteran's claim for service connection
for PTSD, especially because the evidence of record does not
include a diagnosis of PTSD which is either consistent with
proven combat with the enemy, or which is based on a verified
stressor in service.
If any stressful event is verified, a VA PTSD examination is
further warranted to clarify the diagnosis. There are
various psychiatric diagnoses of record in addition to PTSD,
and psychiatric diagnoses which do not include PTSD, so that
clarification of the diagnosis would be required. For
example, some diagnoses include both PTSD and personality
characteristics, PTSD and mood disorder due to organic
factors (sarcoidosis), PTSD and substance abuse, PTSD and
major depression, PTSD and alcohol abuse (in remission) with
(to rule out) major depressive episode, PTSD and
characterological/personality disorder (not otherwise
specified with antisocial and narcissistic features), PTSD
and psychosis, alcohol dependence, cocaine abuse, and
depression (due to organic factors of sarcoidosis and alcohol
abuse), and PTSD and psychotic disorder and impulse control
disorder. A February 1997 discharge diagnosis was to rule
out various Axis I disorders including PTSD, major
depression, mood disorder secondary to general medical
condition, and cocaine induced mood disorder, with diagnoses
of cocaine abuse and an Axis II personality disorder with
antisocial narcissistic features. Other diagnoses include
PTSD symptoms without a diagnosis, or multi-determined
neuropsychological deficits due to depression, old head
injury, and verbal learning disability. A more recent VA
PTSD report of hospitalization in January 2000 resulted in
psychiatric diagnoses of alcohol abuse, cocaine abuse,
substance-induced mood disorder (depressed, with psychotic
features), and antisocial personality disorder, but did not
include a diagnosis of PTSD.
During the pendency of the veteran's claim for service
connection for PTSD, on June 18, 1999, the regulatory
requirements for service connection for PTSD were changed to
require: medical evidence diagnosing the condition in
accordance with 38 C.F.R. § 4.125(a) (conforming to the
Diagnostic and Statistical Manual of Mental Disorders, Fourth
Edition (DSM-IV)); a link, established by medical evidence,
between current symptoms and an in-service stressor; and
credible supporting evidence that the claimed in-service
stressor occurred. 38 C.F.R. § 3.304(f) (2000). Prior to
the effective date of this regulation on June 18, 1999, and
at the time of the December 1995 and March 1998 RO rating
decisions during the appeal, the old requirements for service
connection for PTSD were: medical evidence establishing a
"clear" diagnosis of the condition; credible supporting
evidence that the claimed stressor actually occurred; and a
link, established by medical evidence, between current
symptomatology and the claimed in-service stressor. 38
C.F.R. § 3.304(f) (1998). As the requirement of a diagnosis
of PTSD, as opposed to a "clear" diagnosis of PTSD, is
potentially more favorable to the veteran, on Remand the
veteran's claim should be considered under both the old and
new regulations pertaining to the requirements for service
connection for PTSD. See Karnas v. Derwinski, 1 Vet. App.
308, 312-13 (1991).
The Board notes that during the pendency of the claim the
veteran contended at one point that he had engaged in
"combat with the enemy" during his service in the Persian
Gulf, although at other times he denied any combat. The
record does not appear to contain any evidence, including
even a reported event, of combat with the enemy, and none of
the reported stressful events appear to include reference to
activities which could be construed as combat with the enemy.
During the pendency of the veteran's claim, the VA General
Counsel, in a binding precedent opinion, VAOPGCPREC 12-99,
further defined "combat with the enemy." Pertinent
provisions of VAOPGCPREC 12-99 include the following:
definition of "combat with the enemy" that the veteran
"have taken part in a fight or encounter with a military foe
or hostile unit or instrumentality"; the distinction between
"engaged in combat with the enemy" and "in a theater of
combat operations" or "combat zone," including that the
veteran personally participated in the events; the
requirement of "satisfactory proof" of having engaged in
combat with the enemy; that participation in a "campaign"
or "operation" would not, in itself, establish that the
veteran engaged in combat with the enemy; and that the
question of whether the veteran engaged in combat with the
enemy is a factual determination subject to weighing the
evidence under the benefit of the doubt rule of 38 U.S.C.A.
§ 5107(b) (West Supp. 2001). On Remand, the RO should apply
the provisions of 38 U.S.C.A. § 1154(b) (West 1991) and
VAOPGCPREC 12-99 to address whether the veteran engaged in
combat with the enemy.
II. Service Connection for Joint Pain (Due to Undiagnosed
Illness)
In this case, the evidence reflects that, prior to going to
the Persian Gulf (from January 11, 1991 to June 11, 1991),
the veteran complained of body aches in December 1985 (body
stiffness), January 1986 (diffuse aches), and October and
November 1990 (generalized body ache). In October 1985, he
was diagnosed with a new onset of seizure disorder. The
diagnosis in January 1986 included left leg pain probably
secondary to radiculopathy of the lumbar spine.
At the service separation examination in March 1991, the
veteran indicated in the Report of Medical History that he
had experienced, or then had, cramps in his legs, but denied
a history or complaints of swollen or painful joints,
arthritis, rheumatism, bursitis, painful shoulder or elbow,
recurrent back pain, trick or locked knee, or foot trouble.
The service separation physical examination in March 1991
assessed the veteran's neck, upper extremities, feet, lower
extremities, spine, and musculoskeleture as clinically
normal.
After service, in his December 1992 Application for
Compensation, the veteran indicated that he had experienced
"muscle aches" since service in the Persian Gulf. A VA
Medical Certificate reflects that in May 1993 the veteran
reported right knee pain and a two day history of left big
toe pain. The diagnosis was musculoskeletal pain. A VA
Medical Certificate reflects that in November 1993 the
veteran reported a one year history of bilateral knee pain,
since 1992, and reported injury to the knees in 1992. The
diagnosis was bilateral knee pain. X-rays of the knees were
indicated to reflect hypertrophic changes of the patella, but
otherwise normal. His specific joint complaints of big toe
pain have been related to a diagnosed disability of gout
(January 1993). A VA Medical Certificate in February 1997
reflects the veteran's report that his "arthritis" was
bothering him and report of a two day history of joint pain.
At a VA orthopedic examination in February 1998, the veteran
reported a history of bilateral shoulder and knee aches or
pains since 1993, precipitated by cold weather, and
occasional bilateral knee instability. Clinical findings
included left shoulder motion limited by pain, decreased left
deltoid muscle power, weakness and tenderness of the left
shoulder on palpation, antalgic gait, complaints of low back
pain with ambulation. X-rays of the lumbosacral spine,
cervical spine, shoulders, and knees were all normal. The
diagnoses were chronic low back pain and chronic left
shoulder pain.
A VA hospital admission note dated in December 1998 reflects
the veteran reporting no backache, joint pain, stiffness,
joint swelling, or muscle weakness. An April 1999 VA
outpatient treatment entry reflects complaints of joint
aches. An August 1999 VA orthopedic clinic note reflects the
veteran's complaints of bilateral knee pain since returning
from the Persian Gulf, as well as pain throughout his whole
body, localized to the bottom of his knees. The impression
was knee pain. X-rays dated in 1998 were interpreted as
within normal limits, with no evidence of degenerative joint
disease. An October 1999 VA pain assessment reflects that
the veteran reported he had no pain at that time. A January
2000 hospitalization record reflects that the veteran
complained of a stabbing and cramping pain, weakness, and
unstable joints of the arm, back, and legs, and instability
of the hips. The diagnosis was fatigue, joint aches, and
muscle aches.
While in this case some of the veteran's specific complaints
of joint pain or muscle aches have been related to known
medical diagnoses, further medical opinion evidence is needed
to determine if other complaints of joint pain, muscle pain
or weakness are related to known clinical diagnoses. The
Board notes that pain alone, without a diagnosed or
identifiable underlying malady or condition, does not in and
of itself constitute a disability for which service
connection may be granted. Sanchez-Benitez v. Principi, No.
00-7099 (Fed. Cir. Aug. 3, 2001). Further examination and
medical opinion are important also because service connection
may be established for a chronic disability resulting from an
undiagnosed illness which became manifest either during
active service in the Southwest Asia theater of operations
during the Persian Gulf War or to a degree of 10 percent or
more not later than December 31, 2001. 38 C.F.R.
§ 3.317(a)(1)(i). Examination is also warranted to note any
"signs" (objective evidence perceptible to an examining
physician) of chronic disability, and to obtain medical
opinion regarding the date of onset and etiology of joint
pain or muscle pain symptoms. 38 C.F.R. § 3.317(a)(2-3),
(b).
Finally, the Board notes that during the pendency of the
claims, on November 9, 2000, the President signed into law
the Veterans Claims Assistance Act of 2000, Pub. L. No. 106-
475, 114 Stat. 2096 (2000). Among other things, this newly
enacted legislation eliminated the requirement for a well-
grounded claim and provided for VA notice and assistance to
claimants under certain circumstances. 38 U.S.C.A. § 5103A
(West Supp. 2001). VA has issued regulations implementing
the Veterans Claims Assistance Act of 2000. 66 Fed. Reg.
45,620 (Aug. 29, 2001) (to be codified as amended at
38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a)). Where
laws or regulations change after a claim has been filed or
reopened and before the administrative or judicial process
has been concluded, the version most favorable to the
appellant will apply unless Congress provided otherwise or
has permitted the Secretary of Veterans Affairs to do
otherwise and the Secretary has done so. See Karnas, 1 Vet.
App. 308. In light of the new statutory provisions with
regard to assistance to the veteran-claimant, on Remand the
RO should review the veteran's remanded claims to insure
compliance with this newly enacted statute and the
implementing regulations.
Therefore, these issues are REMANDED for the following
action:
1. The RO should appropriately contact
the veteran, and request any additional
detailed information such as particular
names and dates of persons and incidents
comprising his purported in-service
stressors which he claims have resulted
in his PTSD. The RO should then attempt
to verify the occurrence of the purported
stressors through the USASCRUR, 7798
Cissna Road, Suite 101, Springfield,
Virginia 22150-3197. In this regard, the
veteran's statements (or the RO's summary
of the pertinent information contained
therein), copies of the veteran's service
personnel records, copies of relevant
unit records, and a copy of his record of
service (DD Form 214) should be forwarded
to USASCRUR.
2. The RO should also appropriately
contact the veteran and request the
names, addresses, and dates of treatment
for all medical care providers who have
treated him for PTSD, and who have
treated him for joint pains or muscle
pains since January 2000. After
obtaining any necessary authorization,
the RO should attempt to secure and
associate with the claims file any
additional records, dating since the last
request for such material, which pertain
to his claimed PTSD or joint pain.
3. Following receipt of the USASCRUR's
report, and the completion of any
additional development warranted or
suggested by that office, the RO should
prepare a report detailing the nature of
any in-service stressful event verified
by the USASCRUR. If no stressor has been
verified, the RO should so state in its
report.
4. In the event any of the purported
stressors is verified, the veteran should
be scheduled to undergo a VA PTSD
examination conducted by a psychiatrist,
to determine the nature and extent of any
current psychiatric disorder. The
examination report should contain
detailed accounts of all manifestations
of psychiatric pathology found to be
present. If more than one psychiatric
disorder is diagnosed, the VA
psychiatrist should specify which
symptoms are associated with each
disorder. If certain symptomatology
cannot be disassociated from one disorder
or another, it should be specified. The
entire claims folder and a copy of this
remand must be made available to and
reviewed by the examiner in conjunction
with the examination, and the examiner is
requested to indicate in writing that the
claims folder was reviewed. The VA
examiner is reminded that any diagnoses
reached should conform to the psychiatric
nomenclature and diagnostic criteria
contained in DSM-IV.
If the veteran is found to have PTSD, the
examiner is requested to identify the
diagnostic criteria supporting the
diagnosis. Any indicated special studies
or tests, including psychological
testing, should be accomplished. The
examiner should express an opinion as to
the etiology of any psychiatric disorder
diagnosed, and the likely date of onset
of any psychiatric disorder found.
Should PTSD be diagnosed, the examiner
should indicate which stressor or
stressors (including reported in-service
and/or post-service stressful events)
were relied upon in reaching a diagnosis
of PTSD. The examiner is reminded that
only those stressors which have been
verified can be considered in rendering a
diagnosis of PTSD relating to service.
If the veteran is found to have PTSD, but
which is related to a stressor or
stressors not involving service, the
examiner should so indicate. Further,
the examiner is requested to offer an
opinion as to the validity and/or
sufficiency of the verified stressors as
potential causes for a psychiatric
disorder, to include PTSD. A complete
rationale for all opinions expressed
should be given.
5. The RO should schedule the veteran
for appropriate VA examination of
reported symptoms of joint pain and
muscle pain. a) The examiner(s) should
be requested to clearly report any
diagnoses which are supported by clinical
and special test findings and, for each
such disability capable of medical
diagnosis, the examiner should offer an
opinion as to when such disability was
first manifested, including an opinion as
to whether it is as least as likely as
not that such medically diagnosed
disabilities were first manifested during
service. b) The examiner(s) should also
be requested to clearly report whether
there are any objective indications
(signs) of chronic disability manifested
by joint pain or muscle pain which cannot
by history, physical examination, or
laboratory tests be attributable to any
known clinical diagnosis. The examiner
should offer an opinion as to the
etiology of such disability or signs of
disability.
6. The RO should review the claims file
and take any appropriate action to ensure
compliance with the provisions of the
Veterans Claims Assistance Act of 2000,
Pub. L. No. 106-475, 114 Stat. 2096
(2000); 66 Fed. Reg. 45,620 (Aug. 29,
2001) (to be codified as amended at
38 C.F.R. §§ 3.102, 3.156(a), 3.159 and
3.326(a)).
7. If the veteran's purported stressor
or stressors have been verified and an
examination has been conducted, the RO
should review the examination report to
ensure that it complies with the
directives of this REMAND. The RO
should, likewise, review the VA
examination report for the veteran's
joint pain to ensure that it complies
with the directives of this REMAND. An
examination report failing to comply with
the directives of this REMAND should be
returned for corrective action.
8. The RO should then, on the basis of
all the available evidence, adjudicate on
the merits the issues of entitlement to
service-connection for PTSD (including
consideration of the relevant provisions
of 38 C.F.R. § 3.304, prior to, and on
and after, June 18, 1999) and entitlement
to service-connection for joint pain due
to an undiagnosed illness. If any
benefit sought is not granted, the
veteran and his representative should be
furnished with a supplemental statement
of the case as to that issue wherein all
pertinent statutes and regulations are
fully set forth. The veteran should be
afforded an opportunity to respond before
the case is returned to the Board for
further action.
The purpose of this REMAND is to obtain additional
information and development, and to ensure that all due
process requirements have been met. The Board does not
intimate any opinion as to the merits of the case, either
favorable or unfavorable, at
this time. The veteran is free to submit any additional
evidence he desires to have considered in connection with his
current appeal. See Kutscherousky v. West,
12 Vet. App. 369 (1999).
BARBARA B. COPELAND
Member, Board of Veterans' Appeals